1989 PLP 58 (CLC)

‑‑S.15‑‑Ejectment‑‑Execution‑‑Ejectment order passed ex parte against alleged tenant and notice in execution proceedings issued to him after which appellant appeared before Rent Controller and filed objection against execution and averred that in fact his father was tenant of previous owners after whose death appellant as legal heir was continuing as a tenant‑‑Documentary evidence available on record showing that father of appellant was tenant of shop in question and after his death appellant alongwith other legal heirs of deceased was tenant of shop and appellant should have been brought as opponent in ejectment proceedings‑‑Appellant having not been impleaded as tenant, order of ejectment set aside and case remanded for proceedings afresh after joinder of appellant and other legal heirs as tenants. Muhammad Akram Zuberi for Appellant. Ismail Padhiyar for Respondent. Date of hearing: 26th March, 1986. Ejectment Application No. 1376/1981 was filed by the respondent landlady against one Ghayasuddin in respect of shop premises in question in March, 1981. By order dated 7‑7‑1982, the ejectment application was allowed ex parte. According to the order of the Rent Controller, in spite of notices served upon Ghayasuddin, the opponent in the ejectmnet application, no one appeared on behalf of the opponent and as such the ex parte proceedings were taken and ejectment order was passed ex parte. An execution application was filed, in which notice was issued and at that stage the present appellant Riaz Ahmed appeared before the Rent Controller and filed objections against the execution averring that in fact appellant Riaz Ahmed was the tenant and previously his father late Sirajuddin, was the tenant of the previous owners and after his death in 1975, the appellant as his legal heir was continuing as a tenant. However, before the objections could be decided, the appellant filed the present appeal also in this Court under section 21 of the 1979 Rent Ordinance and the appeal was admitted to regular hearing and R & P was callled and execution was stayed. I have heard Mr. Muhammad Akram Zuberi, learned counsel for the appellant and Mr. Ismail Padhiyar, learned counsel for the respondent.

2. Learned counsel for the appellant has shown copies of rent receipts, which have been filed alongwith the objections in the execution application filed by the respondent landlady and these rent receipts show that as far back as 1967, Sirajuddin, late father of appellant Riaz Ahmed, had been paying rent to one Noor Muhammad. Mr. Ismail Padhiyar states that respondent Mst. Tahira Hamid had purchased the property from Abdul Hamid in January, 1979, who had purchased the property from Noor Muhammad. From documentary evidence, therefore, it is apparent that Sirajuddin deceased father of appellant Riaz Ahmed, was the tenant of the premises in question and after his death, Riaz Ahmed and other legal heirs of deceased Sirajuddin, who were in possession of the premises in question, became the tenants under the provision of the Rent Ordinance. Mr. Ismail Padhiyar states that the respondent landlady had filed the ejectment application in respect of the shop in question against Ghayasuddin, as according to the list of the tenants of the building, in which the shop is located, supplied by the previous owner, the name of Ghayasuddin was mentioned as a tenant against the shop in question. However, learned counsel states that as there is documentary evidence in possession of the appellant Riaz Ahmed, he would have joined Riaz Ahmed as a party after the objection had been filed by appellant Riaz Ahmed before the executing Court but before this stage could reach, the appellant came to this Court filing the present first rent appeal and obtained a stay. Learned counsel for the respondent, in the circumstaces, concedes that the ejectment order is liable to be set aside. Learned counsel for the respondent states that he will consider the position whether he would withdraw the ejectment case or join Riaz Ahmed and other legal heirs of deceased Sirajuddin as co‑opponents in the Ejectment Application No.1376/81. As there is documentary evidence available on record to show that deceased Sirajuddin was the tenant of the shop in question and after his death, which, according to Mr. Muhammad Akram Zuberi, took place sometimes in 1975, his legal heirs including Riaz Ahmed A became the legal heirs and they should have been opponents in the ejectment case and as they had not been joined, the ejectment order passed by the Rent Controller is liable to be set aside.

3. F.R.A. No. 285 of 1983 is allowed and the order dated 27‑7‑1982 in Rent Case No. 1376/81 is set aside. The case is remanded for fresh decision in accordance with law after joinder of Riaz Ahmed and other legal heirs of deceased Sirajuddin as opponents in the ejectment application, for which an application will be filed by the respondent before the Rent Controller. Mr. Muhammad Akram Zuberi, after taking instructions from the appellant, will send in writing a list of all the legal heirs of deceased Sirajuddin to Mr. Ismail Padhiyar, learned counsel for the respondent, so that there remains no doubt about the identity and number of the legal heirs of deceased Sirajuddin. It will be open to the respondent either to join the legal heirs of deceased Sirajuddin as opponents in the Ejectment Application No. 1376/81 or withdraw this ejectment application and file afresh ejectment application. As the order of ejectment dated 27‑7‑1982 has been set aside, by necessary consequence, Execution Application No. 76/82 (renumbered as Execution Application No.34/85 and transferred to the Court of II Senior Civil Judge Rent Controller (South Karachi) also stands dismissed. The R & P of the rent case be sent to the Court of II Senior Civil Judge Rent Controller (South) Karachi, forthwith. A direction is given to the Rent Controller to decide this case within six months of receipt of R & P. There will be no order as to costs. M.Y.H/R‑54/K. Case remanded .